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tv   [untitled]    January 9, 2011 11:30pm-12:00am PST

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they are not necessarily wrong, but it is not a determination that the city attorney has been doing. commissioner garcia: i think it was stated affirmatively that it was not needed. >> i am not aware, but i can look into it. secretary pacheco: over the years, the opinions have changed. president peterson: so moving on, section 9 clarify this jurisdictional requests and sets up the standing for granting such requests, and it does list the time that a successful requester would have for an appeal.
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i am looking at the rules that were distributed in your packets. commissioner garcia: this is what you are talking about. after you, commissioner fung. commissioner fung: i think that i would like to incorporate some language that goes beyond just the city. you may know, madam city attorney, but i am going to do it. commissioner garcia: we cannot put something in our rules. commissioner fung: why is that
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the standard? >> the only authority once the tender 15-day period has expired, which is set by law, that is based on case law, and there is one case that you're all familiar with, and that is the only standard that has been set that the city would be stopped from applying its own time limits when the city is somehow at fault. commissioner garcia: but we have latitude in that. if we feel someone was not properly advised to what their rights are, we have had jurisdiction in the past, based upon the idea that even though it rises to some legal level, it does. >> the example you just gave is where the city is the actor that did something that the board finds. i thought commissioner fung was
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referring to a non city actor causing the lateness. commissioner garcia: i am just stating that we have some latitude within this rule. >> as proposed. right. the other provision in that section though i want you to note, which is the times for filing an appeal after a request has been granted would be shortened. currently, the successful requester is given the same amount of time that they would have if the underlying determination was just issued, some 10, 15, 30 days. this would limit it. president peterson: section 10 deals with when i can it minister of the dismissed appeals.
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this is where the determination has been overturned. there is a revision of the standard for a waiver, which just gives the staff a little bit more latitude and would be very helpful. commissioner garcia: can we go back to three, five prison go to two 1st. commissioner hwang: -- there is a section. >> 14 is referring to the business and tax regulations
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code. >> yes, and we reference to that section on the next page. pursuant to business and tax legislation. commissioner garcia: there must be a reason for it, but i do not know why we do addendum items first. rather than have the police sit here, carla short sit here, you know, various departments people sit here when we go throat issues that have to do with jurisdiction and regulations
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when these people are on the clock, and it is costing the city money. it does not seem to make sense to not have a rule that if you represent the city, you are going first. there are some that are here for the duration. there are some with multiple cases. commissioner hwang: i think it is costing the city money. commissioner garcia: the police are on overtime. vice president goh: did we not leave it to the discretion? is an article 3, section 5? -- is it? commissioner fung: to have it when a government official is
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here for four cases. commissioner garcia: even if there was one case. president peterson: commissioner garcia, there was a case a few months ago when there were pro bono people with mandarin chinese, and they were volunteers, so i think we make all efforts, but there are instances where -- commissioner fung: do you remember the temporary parking permit? that was the last case.
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president peterson: i understand what you are doing. sometimes, they are shorter. i agree that lately they may not have been and short. commissioner garcia: where we know it is going to be short, there is not going to be any discussion, but i have often wondered why we have city officials sitting here cooling their heels when we go through an hour on a re-hearing or a jurisdiction case. secretary pacheco: if they have gone through it already, then there will be others.
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commissioner garcia: cannot determine this on a nightly basis. fiscally, we are going to heat the fact that we are sitting here, but we're going to try to do something about it. commissioner hwang: i often feel bad about people sitting here with the young children, but if you work for the city, you take this on. commissioner garcia: i am not say to always do that, i am just saying that we could say that it moves to the front. the idea that we're having this on a consistent, regular basis before we are hearing city officials, that bothers me, and to deal with that, because, the,
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it seems that is what we have of the evening, it is a addenda items. -- is addenda items. vice president goh: we say -- oh, wait. that is for jurisdiction. i am in the right place? can we say "at the board's discretion, the ordering of the items"? we could say "at the president's discretion." christian garcia: i guess we have some formal or informal way to move them behind, and i might be the only one who feels that way. vice president goh: i think i am with president peterson, the volunteer interpreter, the family with kids, you know --
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commissioner garcia: we have the right to do that. i am not saying we do not do that. i am just talking about why we are hearing jurisdictional items when we have people sitting here. it does not make any sense. i am just saying, as a board, that we reconsider that addenda items always be first. president fung: if you put it at the board's decision, then we have to take it to a vote. i think at the president's discretion. commissioner garcia: so we are not changing in then? >> and then say "at the president's discretion." but i would want some guidance, i think, on a week to week basis, unless the president wants to consult with me every time about which items should go first. i think it is more efficient for the president's time if there is
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more guidance. commissioner garcia: i am just saying, for instance, tonight, we had carl short. that addendum item took a very long time. the present at any time can change the agenda in turn it upside down. -- the president at any time. president peterson: what they can try to do is something.
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this has to deal with a new rule on draft findings. piss is more guidance on what the board protocol is. this would be the draft that was distributed tonight that was dated 12/15. a letter may be submitted. this is from somebody who wants
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to comment on draft rules, that there is a three-page limit, and no exhibit will be allowed. and then, a new section eight. this sets up a policy that i would distribute the draft findings prior to the party is, prior to them being disunity to the board. if the parties are not satisfied, they can provide comments, and if the comments are not incorporated to their satisfaction, then they can submit a three-page brief, outlining their objections, and, of course, they also get three minutes at the hearing. so if there are no further comments from the board, then i open it up for public comments. president peterson: ok. >> good evening, rick
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gladstone. this is not an adversarial hearing, so i wonder if we need to have the three-minutes rule apply, just as a question of the point of order. president peterson: why do you not just start? >> thank you. there are many who do not do this as well, and staff has thought through it really well, but a couple of comments and questions. if you're going to create a section about it, i think it should say that a site visit should be one where both parties are given notice of it and a chance to be there, not necessarily at the same time, but both would have a chance to
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show their location to the commissioner, whether it is the same moment, i do not know. it may not be good. that does not work out too well. second, note -- commissioner hwang: sometimes, a party has not visited the site. sometimes they are not always allowed by the project sponsor. >> i did not mean that they be allowed on the project sponsors sides. what i mean is that the appellate be allowed to share their side or talk on the street what they see about the development, as the developer can bring the commissioner to their sites. i am not talking about trespassed on private property by one side going to the other.
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this is so they have a chance to visit both people's property. that is all. and that is generally what the practice is. >> what do you mean by both peoples parties? >> let's assume there is one appellant and one permit holder. there may be two or three appellants. if the each one decisionmaker to see it from their point of view, they have the opportunity. probably, they will not. they get together and decide. what is the one place the decision makers should be visiting to the point of view of the neighborhood. but that is what i was getting at. president peterson: sorry.
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let's say that someone goes to the site. >> anyone can walk by a site, drive by a site, and many do, and that is not what i am talking about. i am talking about a schedule decided it isn't -- piped -- i am talking about a schedule will decide to visit. -- a scheduled site visit. animosity in issues of fairness. -- and issues of fairness. commissioner hwang: you want both sides, the appellant and the project sponsor, to have notice of that in an opportunity
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to go to the other side? >> no, i am not suggesting. to have the right to go to the other side's side. commissioner hwang: you just want them to have notice? >> that the commissioner is coming out to see one side, and if they want the commissioner to view their side, they can have that. they may choose not to. commissioner fung: i will determine which side i want to visit. commissioner hwang: what you're going to say is that if we want to. the board will maintain, again, the discretion to go to whichever we want to.
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>> i think in the interests of making sure the process is quick, and people get into their hearings quickly, it really should be neither. there should be an opportunity for rebuttals during the actual session. sometimes there were held back from the paperwork. there are some very complex cases, including one where i think it would have helped both parties have a rebuttal. just moving on, i think there
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should be items for continuance on this calendar. to wait around and ask for a continuance. they may agree to it anyway. i think it would be better if you had a request for a continuance. in the case of the project tonight, that would give them a chance to request it. we're hearing from them what it is that is compelling. we may have voted to do the continuance, this is something that the planning commission does. i thought i will throw that out for consideration.
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speaking as an attorney for my clients, my clients make a decision. my clients make a decision about whether they will agree. this is to not grant the continuance.
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i just wanted everyone to understand my point of view. commissioner garcia: what is our practice? >> if there is a request, that is handled offline tyrian if there is a conference, that is something that i bring up to the board, usually with the president's consent early on in the meeting so that the parties can argue as to whether or not it should be granted. commissioner garcia: i think this board does a good job, may be too good of a job, of flushing up the issue. i think enough questions are
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asked that we are better off, but i think the only thing left is for us to vote on it. commissioner hwang: i feel that the seven-minute opening is rather a long. it is a regurgitation. i would suggest that people did not regurgitate their written material in their oral presentations, and that could signal mcginley reduce the time. i think having a rebuttal would be a good idea. >> one thing to remember is that briefing is not mandatory, so the party 7 option to not submit any briefing and choose to make their arguments solely to the board. through oral presentation.
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something that supposed to be done. >> we have the opening brief or if they decide to hear someone reading their opening papers. i am just kidding. i would be inclined to extend the time for rebuttal. this is pretty short, especially on complicated cases. >> we to extend this by asking questions. >> you can't always do that. if you can extend by simply saying that you -- >> ok. >> do you think that seven minutes will be too long.
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>> i might have a tangential issue. sometimes the way that we wind up? it is that certain people get much more time than others and that is not necessarily fair. maybe those are necessary. they did a lot of questions and therefore a lot more time.
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>> if i was an advocate, i would want that cut down. >> can we move on from that? i was wandering what they heard on the site visit. i remember going on the visit for them. we did was to take measurements. then the appellant and he had to hear those too late.
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he was not able to be prepared with his own expert. it seems like there is a trust issue. can you talk about that. >> some of those had bad results. >> they had a lovely funeral the next day. they have always respected the
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wishes of the property owners. [inaudible] as compared to the old days when it was hard to get a photo. >> i still think that they are useful and important. i remember another situation where i did a site visit for the building. i wanted to see this from the appellate property because i had the sense that this was about a few and not about the building. i was told by the departments, neither of the two people here, that it was irrelevant and i was not permitted and i was a
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